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Update on the OSHA Vaccine/Testing ETS

On Friday, November 5, 2021, Federal OSHA published a new Emergency Temporary Standard (ETS) related to Covid-19. The ETS included several new requirements for all applicable employers in Federal OSHA states. For the facilities in states with state-operated OSHA programs, the state program would be legally required to adopt the Federal standard or an equivalent that is “at least as effective” as the Federal standard within 30 days of the publishing date.

The Federal ETS included two significant deadlines for compliance:

Within 30 days

The majority of policy and related documentation elements, including an employee vaccination status “roster,” are required to be in place by December 5, 2021.

Within 60 days

Initiate a weekly Covid-19 testing process for all applicable employees that have not received their final dose of a primary vaccine by January 4, 2022.

Key Elements

  • All applicable employers with 100 or more employees company-wide on or after November 5, 2021
  • A “roster” of all current employees and their vaccination status, inclusive of supporting vaccine documentation
  • Vaccination supportive policies, including paid time to be vaccinated and recover from any adverse effects
  • Weekly documented Covid-19 viral test results for all applicable unvaccinated and partially vaccinated employees after January 4, 2022
  • A policy requiring face coverings for all employees who are not “fully” vaccinated
  • A policy regarding actions to be taken following an employee’s positive Covid-19 test result

As expected, the ETS was legally challenged in several courts including the U.S. 5th Circuit Court of Appeals in New Orleans the day it was published. The next day, Saturday, November 6, the 5th Circuit “stayed” the new standard temporarily and issued a deadline of 5 pm on Monday for the government to respond. Following the response from the Department of Labor, a 3-judge panel of the 5th Circuit deliberated and decided to make the injunction blocking the new rule permanent on November 12.

In the ten days following the November 5 publishing of the ETS, lawsuits were filed in 12 U.S. Circuit Courts of Appeal. This scenario of multiple lawsuits regarding the same issue in more than one Circuit Court initiates a process whereby a lottery is held to select one court to hear a combined case for all of the associated lawsuits. That lottery took place on Tuesday, November 16, and the U.S. 6th Circuit Court of Appeals in Cincinnati, Ohio, was selected to hear the combined case.

At this point, implementation of the ETS is still blocked by the injunction from the 5th Circuit Court, and there is no way to know if the ETS will survive the ongoing legal process and go into effect.  When there is a final decision by the lottery selected 6th Circuit Court, the decision will very likely be appealed to the Supreme Court. A justice of the Supreme Court (Justice Kavanaugh in this case) will decide to either take the case, let the lower court’s decision stand, or refer that initial decision regarding whether or not to take the case to the entire court. Only after all of that and depending on the Supreme Court outcome will anyone “know” if the ETS will go into effect and be enforced and if the existing deadlines for compliance with the ETS will remain as originally indicated or be extended.

The Biden Administration is encouraging all applicable employers to proceed with preparing to comply with the requirements of the ETS while the court case is heard and a decision is made. However, subsequent to the decision by the 5th Circuit, the message below was posted on the OSHA ETS website acknowledging that they will comply with the current injunction.

“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

It is still possible that the ETS will go into effect and that the deadlines of December 5 and January 4 will be enforceable by OSHA. It is also possible that the ETS will be permanently blocked by the courts, as has happened to 5 of the 11 prior Emergency Temporary Standards published by OSHA in the 50-year history of the agency.  Each employer will have to calculate their own tolerance for regulatory risk when deciding if they will move forward with preparations for the implementation of this new standard or wait for the legal process to conclude before taking any action.

Our Covid Response Team is monitoring the situation closely and will keep our clients updated as needed. Please visit our Covid Resource Center for additional information and updates.

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